Essays (1625)

Essay 56

Of Iudicature.

1

IVdges ought to remember, that their Office
is Ius dicere, and not
Ius dare; To Interpret
Law, and not to Make
Law, or Giue Law. Else
will it be like the Authority, claimed by
the Church of Rome; which vnder pretext of Exposition of Scripture, doth not
sticke to Adde and Alter; And to Pronounce that, which they doe not Finde;
And by Shew of Antiquitie, to introduce
Noueltie. Iudges ought to be more Learned, then Wittie; More Reuerend, then
Plausible; And more Aduied, then Confident. Aboue all Things, Integritie is
their Portion, and Proper Vertue. Cursed
( saith the Law ) is hee that remoueth the
Land-marke. The Mislaier of a MeereStone is to blame. But it is the Vniust
Iudge, that is the Capitall Remouer of
Land-markes, when he Defineth amisse
of Lands and Propertie. One Foule Sentence, doth more Hurt, then many Foule
Examples. For these doe but Corrupt the
Streame; The other Corrupteth the Fountaine. So saith Salomon; Fons turbatus, &
Vena corrupta, est Iustus cadens in causâ suâ
coram Aduersario. The Office of Iudges,
may haue Reference, Vnto the Parties
that sue; Vnto the Aduocates that Plead;
Vnto the Clerkes and Ministers of Iustice
vnderneath them; And to the Soueraigne
or State aboue them.

2

First, for the Causes or Parties that Sue.
There be ( saith the Scripture ) that turne
Iudgement into Worme-wood; And surely,
there be also, that turne it into Vinegar;
for Iniustice maketh it Bitter, and Delaies
make it Soure. The Principall Dutie of a
Iudge, is to suppresse Force and Fraud;
whereof Force is the more Pernicious,
when it is Open; And Fraud, when it is
Close and Disguised. Adde thereto
Contentious Suits, which ought to be spewed
out, as the Surfet of Courts. A Iudge
ought to prepare his Way to a Iust Sentence, as God vseth to prepare his Way, by
Raising Valleys, and Taking downe Hills:
So when there appeareth on either side, an
High Hand; Violent Prosecution, Cunning Aduantages taken, Combination,
Power, Great Counsell, then is the Vertue
of a Iudge seene, to make Inequalitie Equall; That he may plant his Iudgement,
as vpon an Euen Ground. Qui fortitèr
emungit, elicit sanguinem; And where the
Wine-Presse is hard wrought, it yeelds a
harsh Wine, that tastes of the Grapestone. Iudges must beware of Hard Constructions, and Strained Inferences; For
there is no Worse Torture, then the Torture of Lawes. Specially in case of Lawes
Penall, they ought to haue Care, that that
which was meant for Terrour, be not turned into Rigour; And that they bring not
vpon the People, that Shower, whereof
the Scripture speaketh; Pluet super eos Laqueos: For Penall Lawes Pressed, are a
Shower of Snares vpon the People. Therefore, let Penall Lawes, if they haue beene
Sleepers of long, or if they be growne
vnfit for the present Time, be by Wise
Iudges confined in the Execution; Iudicis
Officium est, vt Res, ita Tempora Rerum,
&c. In Causes of Life and Death; Iudges
ought ( as farre as the Law permitteth ) in
Iustice to remember Mercy; And to Cast
a Seuere Eye vpon the Example, but a
Mercifull Eye vpon the Person.

3

Secondly, for the Aduocates and Counsell that Plead: Patience and Grauitie of
Hearing, is an Essentiall Part of Iustice;
And an Ouer-speaking Iudge is no well tuned Cymball. It is no Grace to a Iudge, first
to finde that, which hee might haue
heard, in due time, from the Barre; or to
shew Quicknesse of Conceit in Cutting
off Euidence or Counsell too short; Or
to preuent Information, by Questions
though Pertinent. The Parts of a Iudge
in Hearing are Foure: To direct the Euidence; To Moderate Length, Repetition,
or Impertinency of Speech; To
Recapitulate, Select, and Collate, the Materiall
Points of that, which hath beene said;
And to Giue the Rule or Sentence. Whatsoeuer is aboue these, is too much; And
proceedeth, Either of Glory and willingnesse to Speake; Or of Impatience to
Heare; Or of Shortnesse of Memorie; Or
of Want of a Staid and Equall Attention.
It is a Strange Thing to see, that the Boldnesse of Aduocates, should preuaile with
Iudges; Whereas they should imitate God,
in whose Seat they sit; who represseth the
Presumptuous, and giueth Grace to the Modest. But it is more Strange, that Iudges
should haue Noted Fauourites; Which
cannot but Cause Multiplication of Fees,
and Suspicion of By-waies. There is due
from the Iudge, to the Aduocate, some
Commendation and Gracing, where Causes are well Handled, and faire Pleaded;
Especially towards the Side which obtaineth not; For that vpholds, in the Client,
the Reputation of his Counsell, and beats
downe, in him, the Conceit of his Cause.
There is likewise due to the Publique, a
Ciuill Reprehension of Aduocates, where
there appeareth Cunning Counsel, Grosse
Neglect, Slight Information, Indiscreet
Pressing, or an Ouer-bold Defence. And
let not the Counsell at the Barre, chop with
the Iudge, nor winde himselfe into the
handling of the Cause anew, after the Iudge
hath Declared his Sentence: But on the
other side, Let not the Iudge meet the
Cause halfe Way; Nor giue Occasion to
the Partie to say; His Counsell or Proofes
were not heard.

4

Thirdly, for that that concernes Clerks,
and Ministers. The Place of Iustice, is an
Hallowed Place; And therefore, not only
the Bench, but the Foot-pace, and Precincts, and Purprise thereof, ought to be
preserued without Scandall and Corruption. For certainly, Grapes, ( as the Scripture saith ) will not be gathered of Thornes or
Thistles: Neither can Iustice yeeld her
Fruit with Sweetnesse, amongst the Briars
and Brambles, of Catching and Poling
Clerkes and Ministers. The Attendance of
Courts is subiect to Foure bad
Instruments. First, Certaine Persons, that are
Sowers of Suits; which make the Court
swell, and the Country pine. The Second
Sort is of those, that ingage Courts, in
Quarells of Iurisdiction, and are not truly
Amici Curiæ, but Parasiti Curiæ; in puffing
a Court vp beyond her Bounds, for their
owne Scraps, and Aduantage. The Third
Sort is of those, that may be accounted,
the Left Hands of Courts; Persons that
are full of Nimble and Sinister Trickes
and Shifts, whereby they peruert the
Plaine and Direct Courses of Courts, and
bring Iustice into Oblique Lines and Labyrinths. And the Fourth is, the Poler and
Exacter of Fees; which iustifies the Common Resemblance of the Courts of Iustice,
to the Bush, whereunto while the Sheepe
flies for defence in Wether, hee is sure to
loose Part of his Fleece. On the other side,
an Ancient Clerke, skilfull in Presidents,
Wary in Proceeding, and Vnderstanding
in the Businesse of the Court, is an excellent
Finger of a Court; And doth many times
point the way to the Iudge himselfe.

5

Fourthly, for that which may concerne the Soueraigne and Estate. Iudges
ought aboue all to remember the Conclusion of the Roman Twelue Tables;
Salus Populi Suprema Lex; And to know,
that Lawes, except they bee in Order
to that End, are but Things Captious,
and Oracles not well Inspired. Therefore it is an Happie Thing in a State,
when Kings and States doe often Consult with Iudges; And againe, when
Iudges doe often Consult with the
King and State: The one, when there
is Matter of Law, interuenient in Businesse of State; The other, when there
is some Consideration of State, interuenient in Matter of Law. For many
times, the Things Deduced to Iudgement, may bee Meum
and Tuum, when
the Reason and Consequence thereof,
may Trench to Point of Estate: I call
Matter of Estate, not onely the parts
of Soueraigntie, but whatsoeuer introduceth any Great Alteration, or Dangerous president; Or Concerneth
manifestly any great Portion of People. And
let no Man weakly conceiue, that Iust
Laws, and True Policie, haue any Antipathie: For they are like the Spirits, and Sinewes, that One moues with the Other.
Let Iudges also remember, that Salomons
Throne, was supported by Lions, on both
Sides; Let them be Lions, but yet Lions
vnder the Throne; Being circumspect,
that they doe not checke, or oppose any
Points of Soueraigntie. Let not Iudges
also, be so Ignorant of their owne Right,
as to thinke, there is not left to them, as a
Principall Part of their Office, a Wise Vse,
and application of Lawes. For they may
remember, what the Apostle saith, of a
Greater Law, then theirs; Nos scimus quia
Lex bona est, modò quis eâ vtatur Legitimè.

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